California OAH special education order · March 20, 2020
Order Partially Granting Motion for Stay Put
OAH Case No. 2020020631 · ALJ Linda Johnson
OAH ordered Fremont to provide 60 minutes of weekly individual counseling as stay put, but refused to require Student's current counselor because stay put covers services, not a particular provider.
This case went to decision
Student v. Fremont Unified School District: Fremont Unified prevails on all 17 claims by an adult student with anxiety over home instruction and IEP meetings. (2020)
Summary
Student asked for stay put to keep 60 minutes per week of individual counseling under the February 1, 2019 IEP, as amended March 20, 2019, and to keep her current counseling provider. Fremont opposed, arguing the last agreed-upon and implemented IEP was the February 22, 2018 IEP, amended June 13, 2018, which offered 30 minutes per week, and that Student could not choose a provider. Student's reply included a March 20, 2019 prior written notice showing counseling had been increased to two 30-minute sessions weekly, so OAH found stay put includes 60 minutes per week. OAH denied the request to keep the same provider because a district may choose service providers and stay put protects the program and services, not a specific person.
Why it matters
Parents seeking stay put should submit proof that the IEP or service level was actually agreed to and implemented, such as a signature page or prior written notice. Stay put generally will not lock in a particular therapist or provider.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Cal. Code Regs., tit. 5, § 3042, subd. (a)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
- N.R. v. San Ramon Valley Unified School District (N.D.Cal. 2007) 2007 WL 216313
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
IN THE MATTER OF:
PARENT ON BEHALF OF STUDENT,
v.
FREMONT UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020020631
ORDER PARTIALLY GRANTING MOTION FOR STAY PUT
MARCH 20, 2020
On March 12, 2020, Student filed a motion for stay put. On March 13, 2020, Fremont filed an opposition. On March 16, 2020, Student filed a partial response to Fremont’s opposition.
APPLICABLE LAW
Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).)
This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the last agreed upon and implemented individualized educational program, called IEP, placement prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)
In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs,” as specified in the IEP.
(Cal. Code Regs. tit. 5, § 3042, subd. (a).)
In California, related services are called designated instruction and services (DIS services), and must be provided “as may be required to assist an individual with exceptional needs to benefit from special education….” (Ed. Code, § 56363, subd. (a).) A district may choose providers for these DIS services and is not required to use a particular provider or company because of parental preference. (N.R. v. San Ramon Valley Unified School District (N.D.Cal. 2007) 2007 WL 216313; Slama ex rel. Slama v.
Independent School District No. 2580 (D.Minn. 2003) 259 F.Supp.2d 880, 885.)
DISCUSSION
Student requests stay put for two reasons, first to ensure she receives 60 minutes a week of individual counseling services as offered in the February 1, 2019 IEP, that was amended on March 20, 2019, and second to continue with her current counseling provider. Freemont argues Student’s last agreed upon and implemented IEP is the February 22, 2018 IEP that was amended on June 13, 2018, that offered 30 minutes per week of individual counseling services. Fremont further argues Student cannot specify a particular provider.
Student provided a copy of the services page of the February 1, 2019 IEP that offered Student 60 minutes weekly of individual counseling Student, but did not include the signature page that shows the IEP was consented to and implemented. However, Student included in her partial response to Fremont’s opposition an email that references prior written notice from Fremont regarding the counseling, and a prior written notice from March 20, 2019, stating Student’s individual counseling services were increased to two 30 minute sessions weekly totaling 60 minutes per week. Student proved that stay put includes 60 minutes per week of individual counseling.
Conversely, stay put is the program and services, not the individual provider.
Student may wish for the same service provider, however, she cannot unilateral, through stay put, force the Fremont to provide the same service provider. Therefore, Student’s request to maintain her current individual counseling service provider is denied.
ORDER
Student’s motion for stay put is granted as to the duration of counseling services but not the individual service provider. Fremont is to provide Student with two 30 minute individual counseling sessions per week.
Linda Johnson Administrative Law Judge Office of Administrative Hearings